The Obama administration yet again is refusing to disclose internal documents and other sources of requested information to a committee of Congress. Although such interbranch impasses are not extraordinary, this latest dispute — as well as earlier ones regarding investigations over the Fort Hood shooting, Operation Fast and Furious and Solyndra — demonstrates a strong penchant for secrecy by this president, who, as a candidate in 2008, made firm promises to conduct an open administration.
Recently, the House Natural Resources Committee issued a subpoena seeking all White House documents relating to the Interior Department’s report and decision-making process on the offshore oil and natural gas drilling moratorium in the Gulf of Mexico. The White House might have edited some of the documents to give the appearance that an independent panel of experts approved of the decision. The subpoena also seeks more than a dozen documents in the possession of the acting inspector general that directly relate to the moratorium report.
The committee’s position is strong in that it is requesting information that is directly germane to its oversight and policymaking responsibilities. In significant ways, this investigation is similar to the firing of the U.S. attorneys under President George W. Bush, even though the type of information being sought by Congress is quite different. In the Bush-era investigation, as well, the principal accusation was that the administration’s decision-making process was driven by purely political motives and that considerations of facts and merit played little role in the ultimate outcomes.
The Interior Department recently responded by declaring that it “has been working diligently and in good faith” to provide the requested information. Specifically, the department noted it had provided almost 1,000 pages of documents along with permitting in camera review of other documents. It also alleged that the committee’s investigation was too “varied and unsettled” in scope, thus making it difficult to comply with the subpoena.
Finally, the department asserted that it must “protect the integrity and confidentiality of the executive branch’s implementation of the law and its deliberative processes.” Because of that and the “particularly acute” nature of the documents being sought (national environmental disaster information), the committee must “articulate a clear, specific oversight interest” for proper disclosure to occur “without unnecessary intrusion into executive branch deliberations.”
Without a direct presidential claim of executive privilege, the Interior Department has no right to withhold information subpoenaed by the committee. To say that the department has disclosed many documents does not mean that the most germane ones have been provided.
Even if we accept that the administration may withhold documents without claiming executive privilege, citing the “deliberative process” standard does not afford the same level of protection for departmental documents as presidential ones. A deliberative process claim also cannot overcome a showing of possible government wrongdoing. Finally, there is nothing in the history of interbranch disputes over information or case law that requires the committee to “articulate a clear, specific oversight interest” when national environmental disaster information is being sought, especially considering that the committee already identified its oversight needs.
The administration’s actions reveal a strategy of promoting secrecy without resulting in the full-blown interbranch battles of the George W. Bush era. If the pattern evidenced so far in this controversy and several of the past Obama-era information disputes holds, then unless pushed to the limit, the president won’t claim executive privilege so he can avoid political fallout. The administration will likely continue to slow-walk or withhold requested information while dumping loads of nongermane documents to appear to be cooperating with the investigation.
Such a strategy has allowed the Obama administration to buy significant time against Congressional pressure to release certain documents. Doing so has enabled the administration to change the political narrative away from the accusations and more toward alleged legislative meddling and nitpicking over particular documents. Buying time also has had the effect of reducing media interest in the story, as demands for documents drag out and political Washington looks to other potential dramas.
Obama’s tactics are certainly much less directly confrontational than what occurred under Bush, who did not employ the rhetoric of running an open administration but rather emphasized the pre-eminence of the executive branch. Obama’s approach derives the benefits of executive pre-eminence while offering the appearance of being more open and accommodating even as his administration continues to stonewall.
Mitchel A. Sollenberger is assistant professor of political science at the University of Michigan-Dearborn. Mark J. Rozell is professor of public policy at George Mason University. They are co-authors of “The President’s Czars: Undermining Congress and the Constitution.”
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.